What is the distinction between an apparatus and a product made by the apparatus?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

An apparatus and a product made by the apparatus can be shown to be distinct inventions if either or both of the following can be shown:

• (A) The apparatus as claimed is not an obvious apparatus for making the product and the apparatus as claimed can be used to make another materially different product; or
• (B) The product as claimed can be made by another materially different apparatus.

As stated in MPEP 806.05(g):

“An apparatus and a product made by the apparatus can be shown to be distinct inventions if either or both of the following can be shown: (A) that the apparatus as claimed is not an obvious apparatus for making the product and the apparatus as claimed can be used to make another materially different product; or (B) that the product as claimed can be made by another materially different apparatus.”

This distinction is crucial for determining whether a restriction requirement is appropriate between apparatus and product claims.